State v. Beavers, KCD
| Decision Date | 03 December 1979 |
| Docket Number | No. KCD,KCD |
| Citation | 591 S.W.2d 215 |
| Parties | STATE of Missouri, Respondent, v. Felix R. BEAVERS, Appellant. 30144. |
| Court | Missouri Court of Appeals |
Kevin R. Locke, Asst. Public Defender, Kansas City, for appellant.
John Ashcroft, Atty. Gen., Jefferson City, Philip M. Koppe, Asst. Atty. Gen., Kansas City, for respondent.
Before SHANGLER, P. J., and SWOFFORD and CLARK, JJ.
Defendant was charged by information with the offense of tampering with a motor vehicle. He was tried before a jury, was found guilty and was thereafter sentenced by the court as a second offender.
As the sole point raised on this appeal, defendant contends that the trial court erred in failing to sustain his motion to quash the petit jury panel. Such motion, addressing the automatic exemption available to prospective jurors of the female gender, asserted a violation of the Sixth and Fourteenth Amendments to the United States Constitution in that defendant was denied his right to trial by a jury comprising a fair cross section of the community.
Defendant's motion to quash the jury panel was filed November 30, 1977. The record reflects no action with respect to the motion until February 1, 1978. At that date, the case was called for trial and, in a colloquy in chambers before selection of the jury commenced, the court inquired of defense counsel if he desired to pursue the motion. Counsel informed the court that a transcript record from the case of State v. Bass 1 was to be offered by stipulation as an evidentiary basis for the motion, but the record was not immediately available. In the interests of expediting the trial, defense counsel suggested that the issue of the jury panel infirmity be ruled against the defendant and that selection of the jury proceed.
The transcript on appeal includes no ruling by the trial court on the motion to quash the jury panel. Pursuant to Rule 81.12(c) and in the interests of appropriate disposition of this cause, this court of its own initiative has reviewed the trial court file, has identified therein an order by the trial court overruling defendant's motion to quash the jury panel and has directed that the omission be corrected by the addition of such order to the transcript record.
Ruling on defendant's motion was by minute entry preceding selection of the trial jury and, presumably, at the conclusion of the in-chambers conference described above. The order states: "The defendant's motion to quash jury panel is taken up and no evidence being presented is overruled."
The trial of the case proceeded to verdict and a motion for new trial was filed. Among other grounds, failure of the trial court to quash the jury panel was alleged as error and the constitutional grounds contained in the original motion were restated. Additionally, defendant offered and the court received the Bass case transcript. On March 20, 1978, the court overruled the motion for new trial reflecting, as to the constitutional challenge of the jury selection process, the then controlling decisional authority, State v. Duren, 556 S.W.2d 11 (Mo.banc 1977).
Although conceding that which has been repeatedly confirmed in the subsequent decisions of this court, obligatory reversal of convictions in Duren type cases where the constitutional defect in jury composition has been raised and preserved, the State argues here that defendant failed effectively to present the issue and, for lack of any evidentiary basis, the point is not available for consideration on appellate review. At the heart of the State's contention is that circumstance, exemplified in the trial court's minute entry, in which defendant's motion was denied for want of any showing that automatic exemption to women from jury service had, as to the subject jury array, actually reduced female participation.
In Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979), the court held a violation of the "fair-cross-section" requirement for petit jury sources to entail a three-prong test including a demonstration that a distinctive group in the community is proportionally underrepresented in the venires. Thus, it was noted that exemptions from jury service may permissibly result in some degree of over-or-under-inclusiveness but constitute a prima facie violation of the constitutional requirement when experience demonstrates a substantial threat that the pool of jurors is not representative of the community. The challenge to the jury array must in some manner show the actual effect of discriminatory selection in the composition of the jury pool from which the panel in issue was selected. This cannot be accomplished if the court has no evidence on the subject.
While defendant here did not offer evidence of the disproportionate female participation in Jackson County juries, such evidence was before another division of the same court as exemplified in the Bass transcript later filed and by stipulations of jury wheel statistical data for the years 1976 and 1977 of which judicial notice may be taken from the records before this court in numerous other cases dealing with the same issue. The holding in State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979) controls and stands for the proposition that when justice...
To continue reading
Request your trial
-
State v. Johnson
...effect of the manner in which the jury was selected during the particular year in which the case on review was tried. State v. Beavers, 591 S.W.2d 215 (1979); State v. Hawkins, 582 S.W.2d 333 (Mo. App.1979). Similarly, we have held it to be immaterial that the defendant did not insist on a ......
-
Benson v. State
...in the absence of evidence to the contrary was relied upon in State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979), and State v. Beavers, 591 S.W.2d 215 (Mo.App.1979) to find Duren violations where the factual data offered to support the motion were for a prior year's jury panel. Thus, the princi......
-
State v. Phillips, 40924
...cannot be presented for the first time in a brief upon appeal where no timely motion to quash the jury panel was filed. State v. Beavers, 591 S.W.2d 215 (Mo.App.1979). See, State v. Williamson, supra. Appellant Phillips' allegations of due process violations were not timely made and do not ......
-
State v. Williams, KCD
...effect of the manner in which the jury was selected during the particular year in which the case on review was tried. State v. Beavers, 591 S.W.2d 215 (1979); State v. Hawkins, 582 S.W.2d 333 (Mo.App.1979). Similarly, we have held it to be immaterial that the defendant did not insist on a r......